Maqableh v Kaklamanis

NCAT Appeal Panel|2022-05-26

Introduction

On 1 December 2021, for the reasons published on that date, the Appeal Panel dismissed the Appellant's appeal against orders made by the Consumer and Commercial Division of the Tribunal. The Tribunal's orders provided for the filing of written submissions in support of any application for costs of the appeal and any submissions in response to such an application.
The reasons of the Appeal Panel recorded, at [127] that any submissions in support of a claim for costs were to "address the legal and factual basis on which such expenses are claimed" and whether any costs dispute could be decided "on the papers" by considering the written submissions and dispensing with a hearing on costs.
On 8 December 2021 the Respondent filed written submissions in support of an application for costs. The Appellant has not filed any material with respect to the Respondent's costs application, either in accordance with the orders of 1 December 2021 or otherwise.
The Respondent's application is thus entitled to be treated as being undefended, but, as will be seen, that does not automatically result in his costs application being successful.

Principles governing the application

As the submissions on behalf of the Respondent accurately recognise, the provisions of Rule 38 of the Civil and Administrative Tribunal Rules 2014 (NSW) were enlivened at first instance, and thus Rule 38A is enlivened in the present application, as the amount claimed or in dispute in the proceedings at first instance was more than $30,000.
In B & M Mitchell Pty Limited v Mikell Investments Pty Limited & Divist Pty Limited t/as Contemporary Homes [2018] NSWCATAP 63 at [10] the Appeal Panel said that it is "an uncontroversial principle that the rationale of awarding costs is to partially compensate the successful party for costs incurred. The intention is not to punish the unsuccessful party, but rather to compensate the successful party". The decision of the High Court in Latoudis v Casey [1990] HCA 59; (1991) 170 CLR 534, was cited in support of that proposition, at [10].
In LMA Contractors Limited v Changizi [2017] NSWCATAP 145 at [14] the Appeal Panel said that the determination of costs for present purposes involves: i the Appeal Panel having a general discretion in respect of the award of costs; ii the "starting point" in the exercise of discretion is that the "usual order for costs" is that a successful party should be entitled to an order for costs; iii there is no absolute rule that, absent disentitling conduct, a successful party is to be compensated by the unsuccessful party; iv the factors to be considered are not to be confined so as to constrain the general discretion; v a relevant consideration may be whether, by reason of the relative success of the parties on different issues and the time taken to determine them, a proportional costs order should be made; and vi whether, by reason of the nature of the proceedings the usual rules should otherwise be displaced in whole or part.
In Oshlack v Richmond River Council [1968] HCA 11; (1968) 193 CLR 72, per Gaudron and Gummow JJ at [22] and McHugh J at [65], the proper exercise of the discretion requires the Tribunal to do justice between the parties and to exercise the discretion having regard to relevant considerations and in a manner which is not arbitrary or capricious.

The Respondent's submissions

Although the Respondent correctly identified Rule 38A as the provision which governed his application at the commencement of his submissions, his submissions thereafter were directed to demonstrating "special circumstances" pursuant to s 60(3) of the CAT Act, and thus need not be considered.
The Respondent submitted (3) that his success in the proceedings "both at first instance on appeal" was not a "special circumstance" which was determinative of costs, but was "at least a relevant consideration supporting the award of costs in the Respondent's favour given it was put to expense in defending an unsuccessful claim". As its terms make clear, when Rule 38A applies, an applicant for costs does not need to establish special circumstances to enliven the jurisdiction to award costs.
We do not accept that anything which occurred in the proceedings at first instance is a relevant consideration for present purposes. The present application is for an order for the costs of the appeal. What occurred in the appeal, accordingly, governs the determination of the application.
The Respondent was undoubtedly wholly successful in the appeal, and with respect to the Appellant's application for leave to adduce further or "new" evidence.
As the authorities referred to above establish, the Respondent having been wholly successful in the proceedings, the "starting point" is that he should have an award of costs.
The Appellant has filed no submissions in opposition to the Respondent's claim. He has had ample time in which to do so. Nothing which the Appeal Panel has discovered for itself suggests that the presumption in favour of an award, or "starting point", to which the authorities refer should be departed from. Nothing done by the Respondent in the appeal could properly "disentitle" him to a costs award. Nothing raised by the Appellant in the appeal, or application to adduce further evidence could properly produce that outcome. Having been wholly unsuccessful on all issues, no consideration of a proportional costs order can arise.
It is also relevant that rule 7 of Sch 4 of the CAT Act provides that despite s 45 a party to proceedings for the exercise of a Division function (i.e. a function allocated to the Consumer and Commercial Division ) for the purposes of the Retail Leases Act 1994 is entitled to be represented by an Australian lawyer or other agent without requiring the leave of the Tribunal. Section 45 provides that a party to proceedings in the Tribunal is not entitled to be represented by any person but may be represented with the leave of the Tribunal. Rule 7 may only apply in the proceedings in the Consumer and Commercial Division and not to appeals from that Division. Nevertheless the entitlement granted by rule 7 is in our view a factor to be taken into account in deciding whether costs incurred in an appeal should be the subject of an order in favour of the successful party.

Conclusion

We are satisfied that, for the reasons recorded above, the Respondent establishes an entitlement to costs as agreed or assessed on the ordinary basis.

Orders 1. Pursuant to s 50(2) of the Civil and Administrative Tribunal act 2013, the Tribunal dispenses with an oral hearing of the application. 2. The Appellant pay the Respondent's party and party costs of the appeal as agreed or assessed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 May 2022

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